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HUMMEL'S WHARF FIRE COMPANY v. OLIVE J. LEITNER (04/30/82)

SUPERIOR COURT OF PENNSYLVANIA


April 30, 1982

HUMMEL'S WHARF FIRE COMPANY, APPELLANT
v.
OLIVE J. LEITNER

No. 113 Harrisburg, 1980, Appeal from the Order dated April 29, 1980, Court of Common Pleas, Civil Division, Snyder County at No. 408-1975.

Before Price, Johnson and Shertz, JJ. Shertz, J. did not participate in the consideration or review of this case.

Per Curiam:

The Order dated April 29, 1980 is affirmed on the comprehensive opinion of President Judge Wilson.

SHERTZ, J. did not participate in the consideration or review of this case.

IN THE COURT OF COMMON PLEAS, 17TH JUDICIAL DISTRICT SNYDER COUNTY BRANCH - CIVIL

NO. 408 - 1975

HUMMEL'S WHARF FIRE COMPANY, Plaintiff, vs. OLIVE J. LEITNER, Defendant.

IN ASSUMPSIT

Before the court are defendant's post trial motions. The only one of which is here considered is defendant's claim of judicial error in consequence of the court's failure to quash plaintiff's appeal from an arbitration award as being untimely. Because a post trial hearing held December 27, 1978 disclosed that the award of the arbitrators was docketed May 4, 1976, and plaintiff's appeal was not perfected until May 25, 1976, it is determined that the appeal was untimely. Thus defendant's motion for judgment non obstante veredicto must be sustained.

The post trial motions were made following trial which developed from the following related circumstances. Plaintiff entered judgment by confession upon default consistent with the cognovit provisions of a note executed by the defendant as a co-maker with Norman S. Leitner, wherein the plaintiff was payee. This judgment was stricken for the failure of the plaintiff to proceed by suit in assumpsit. Thereafter plaintiff filed a complaint in assumpsit, which complaint was heard by arbitrators on April 30, 1976. On May 4, 1976 the arbitrators found for the defendant, filed their report, and the chairman notified the parties of the award.

Thereafter plaintiff on May 20, 1976 filed a notice and affidavit of appeal with the Prothonotary. However the recognizance in support of the appeal was not filed until May 25, 1976.

Prior to trial on October 21, 1976 the court heard argument in respect to defendant's motion to quash the appeal based on the proposition that the plaintiff did not perfect his appeal within the twenty (20) days as provided by law. Plaintiff's motion was dismissed and trial was held de novo, at which trial plaintiff's motion for a directed verdict against defendant was sustained.

On October 25, 1976 the defendant filed motions in arrest of judgment, new trial, and judgment N.O.V., upon which a hearing was held December 27, 1978 to receive testimony concerning the date of the entry of the arbitrators' award on the docket. At the hearing the Prothonotary testified that the award would have been entered on the docket within an hour to an hour and one-half after filing.

He expressed the policy of the office as being to not date the entry of the award on the docket but to give priority to the entry of judgments over all other business, and as arbitration awards are in the nature of a judgment, the award had to have been entered on the day it was filed. Thus it is determined that as May 4, 1976 was no partial holiday, and that although no date of entry appears on the docket as to the date of the docketing of the award, it was entered on the docket on May 4, 1976.

The time frame in which an appeal from an award of a Board of Arbitration must be perfected is provided for by Section 27 of the Act of June 16, 1836, P.L. 715, (5 P.S. ยง 71). The relevant portion provides as follows:

"Such appeal shall be entered, and the costs paid, and recognizance filed, within twenty days after the day of the entry of the award of the arbitrators on the docket."

This time frame is concretely and unalterably fixed, for the law allows no deviation from its stricture in the absence of fraud, its equivalent, or a breakdown in the court's procedure or operation. See, Dixon Estate, 443 Pa. 303, 279 A.2d 760, (1972); West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909, (1975); Scharfman v. Philadelphia Transp. Co., 234 Pa. Super. 563, 340 A.2d 539, (1975); Appeal of Citizens for Improvement of N. 52nd Street Area, 213 Pa. Super. 46, 245 A.2d 725, (1968). The twenty day statutory period as provided by Section 27 of the Act is construed to be mandatory as the permissible time in which a party has to perfect his appeal. See, MacKanick v. Rubin, 246 Pa. Super. 71, 368 A.2d 815, (1976); James F. Oakley, Inc. v. School Dist. of Philadelphia, 464 Pa. 330, 346 A.2d 765, (1975); Gould v. Lampley, 225 Pa. Super. 107, 310 A.2d 420, (1973).

As the record does not disclose the date of the actual entry of the arbitrators' award on the docket, the plaintiff argues that in keeping with Gould v. Lampley, supra., the defendant should not be prejudiced by perfecting an appeal twenty-one days after the filing of the award. Although it is true that in the instant case, like Gould v. Lampley, supra., the Prothonotary's docket does not indicate the date of the entry of the award, however, unlike Lampley the testimony is clear that the award was entered upon the docket on the day the award was filed. In Gould v. Lampley, supra., the court refused to resolve the dilemma against the defendant where there was a choice of three possible dates on which the award may have been docketed. Further, in Lampley, the evidence disclosed that the award was filed two minutes before the office of the Prothonotary closed on a Friday afternoon. Thus the likelihood of the award being docketed on Friday, the date the award was filed, would have been extremely unlikely.

In the instant case as there was an absence of evidence that the award was not docketed pursuant to standard procedures of the Prothonotary's office, which required entry of judgments or awards within one-half hour to one hour after filing, it must be presumed that the award was docketed May 4, 1976. The plaintiff having not perfected its appeal until May 25, 1976, the appeal is untimely. Thus the court lacked the essential element of jurisdiction to proceed to trial de novo.

A. Thomas Wilson, P.J.

Order

AND NOW, this 29th day of April, 1980, defendant's motion for judgment N.O.V. is sustained, and it is ORDERED that judgment be entered in favor of the defendant and against the plaintiff non obstante veredicto.

A. Thomas Wilson, P.J.

19820430

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